Fullwood v. Sivley , 271 Ga. 248 ( 1999 )

Benham, Chief Justice,

dissenting.

Just recently, we decided that a person sentenced to death is not entitled to an appointed lawyer in pursuit of habeas corpus relief. Gibson v. Turpin, 270 Ga. 855 (513 SE2d 186) (1999). Prior to that, strict time tables were imposed on habeas corpus petitioners. See OCGA §§ 9-14-47.1; 9-14-48 (b); 9-14-52 (b). Even earlier, this Court decided that there was no equal protection violation in the fact that the State was entitled to a direct appeal in habeas corpus matters while an unsuccessful petitioner was required to file an application. Reed v. Hopper, 235 Ga. 298 (219 SE2d 409) (1975). Now the majority constructs another hurdle for habeas corpus petitioners to overcome. The net effect will mean a complete emasculation of the Great Writ.

We are presented in this case specifically with the question of whether pro se petitioners for the writ of habeas corpus will be required to comply strictly with the appellate procedures set forth in OCGA § 9-14-52, which provides that an unsuccessful petitioner seeking to appeal must, within 30 days of the judgment, file both a notice of appeal and an application to this Court for a certificate of probable cause to appeal. In a broader sense, though, we are deciding whether the writ of habeas corpus is to continue to reside in a place of honor in Georgia law. In considering this issue, we must be cognizant of Georgia’s place in the history of habeas corpus as the first jurisdiction to include a specific right to the Great Writ in its constitution. Wilkes, A New Role for an Ancient Writ: Postconviction Habeas Corpus Relief in Georgia (Part I), 8 Ga. L. Rev. 313, 314. We must also be mindful of the shrinking role of the federal judiciary in the protection of individual rights, and the concomitant need for the state judiciaries to pick up that burden.

It would be a bitter irony indeed if our [state] courts, in an effort to accommodate the Supreme Court’s retrenchment of federal habeas review, were artificially to elevate, procedural rulings over substantive adjudications in post-conviction review, at a time when the Court’s curtailment of [federal] habeas review forces state prisoners to rely increasingly on state post-conviction proceedings as their last resort for vindicating their state and federal constitutional rights.

State v. Precióse, 129 NJ 451, 477 (609 A2d 1280) (1993), quoted in Wilkes, State Postconviction Remedies and Relief, p. 112. (Harrison, 1996).

Upon a consideration of the history of the writ of habeas corpus, of the realities of habeas corpus litigation by prisoners, and of the possible constitutional implications of a requirement of strict compliance, I conclude that in the context of pro se petitioners for the writ of habeas corpus, the requirements of OCGA § 9-14-52 should not be considered jurisdictional in nature and that strict compliance with the statutory procedures should not be required so long as sufficient steps are taken by the petitioner to give notice of an intention to begin the appellate process.

The majority opinion in this case posits that the requirements of OCGA § 9-14-52 are jurisdictional and that strict compliance with them is an absolute requirement in order to permit this Court to entertain an appeal from a judgment adverse to the petitioner in a habeas corpus case. In support of that position, the majority opinion cites several cases, conspicuously absent from which are any which address the specific situation before us, a procedurally defective appeal by a pro se petitioner for state habeas corpus.

It has long been the practice of this Court, a practice grounded in our duty to do substantial justice to all who come before our bar and in the realities of habeas corpus practice, to accord pro se habeas corpus petitioners considerable latitude with regard to the procedural niceties related to securing appellate review of adverse judgments. That practice is also grounded in respect for the spirit as well as the letter of our Constitution: “The writ of habeas corpus shall not be suspended unless, in case of rebellion or invasion, the public safety may require it.” Art. I, Sec. I, Par. XV, Ga. Const. 1983. See also U. S. Const., Art. I, Sec. 9.

While OCGA § 9-14-52 does not on its face amount to a suspension of the Great Writ, the majority’s rigid interpretation of that section, for all practical purposes, amounts to such a suspension, at least as regards unrepresented habeas corpus petitioners.¹ “An act must be construed to support its constitutionality if there is one construction which would support constitutionality and one which would not.” Lasseter v. Ga. Public Svc. Comm., 253 Ga. 227, 230 (319 SE2d 824) (1984). “The cardinal rule of statutory construction is to ascertain the legislative intent and purpose in enacting the law and to construe the statute to effectuate that intent. [Cit.]” Ferguson v. Ferguson, 267 Ga. 886 (1) (485 SE2d 475) (1997). The obvious purpose of the requirement in OCGA § 9-14-52 (b) that an unsuccessful petitioner file both a notice of appeal and an application for a certificate of probable cause to appeal is to provide this Court with the data necessary to consider whether a full appeal should be permitted. Given the fact that 90 percent of appeals from the denial of habeas corpus petitions are filed pro se² by persons with limited access to document production facilities, that is a perfectly sensible departure from the procedure required in applications to appeal under OCGA §§ 5-6-34 and 5-6-35, where the applicant is required to identify and provide to the appellate court the portions of the record needed to decide whether an appeal is warranted. The purpose of the procedure set out in OCGA § 9-14-52 (b) has been well met by this Court’s practice of permitting substantial compliance with the statute, and no petition has wanted for proper consideration on account of the lack of a record. Now the majority opinion has taken a statutory provision intended to further our consideration of the merits of habeas corpus appeals and corrupted it into a trap for the unwary, a means of preventing consideration of the merits. It was to avoid such injustice that this Court began to consider the statutory procedures to be directory rather than jurisdictional.

To require strict compliance with the procedures set out in OCGA § 9-14-52, as the majority opinion does, would in an unconscionable proportion of cases amount to a blanket denial of the Great Writ, in fact, to a suspension of the writ. Such a grudging attitude toward the Great Writ of Liberty is entirely inconsistent with Georgia’s historical reverence for the writ, evidenced by the fact that Georgia was one of only three states to vote against the portion of the habeas corpus clause in the first U. S. Constitution which would permit the suspension of the writ under specified circumstances. Wilkes, State Postconviction Remedies and Relief, p. 112 (Harrison, 1996). The majority opinion’s insistence on scrupulous observance of every procedural step acts only to bar meaningful access to the courts, undermining this Court’s principled pronouncement in Howard v. Sharpe, 266 Ga. 771 (1) (470 SE2d 678) (1996):

Prisoner access to the courts in order to challenge unlawful convictions and to seek redress for violations of constitutional rights cannot be unjustifiably denied or obstructed. [Cit.] In this State, meaningful access to the courts includes the right to contest the legality of a conviction or the constitutionality of prison conditions through habeas corpus proceedings, [cit.], and the right to meaningful communications with the courts. [Cits.] Those regulations and restrictions which bar adequate, effective and meaningful access to the courts are unconstitutional. [Cits.] . . . Because of the constitutional ramifications to any abridgement of an individual’s right to access [cit.], and given the expanded view of the right to file for habeas corpus relief set forth in OCGA § 9-14-40 and Giles v. Ford, [258 Ga. 245 (1) (368 SE2d 318) (1988)] . . . , restrictions on an inmate’s right of access to the courts must be drawn so as to avoid unjustifiably obstructing access to the courts and clearly warranted by the particular circumstances of each case.³

The majority opinion’s construction of OCGA § 9-14-52 (b) causes it to fall afoul of the constitutional proscription against unreasonably limiting access to the courts as well as the prohibition against suspension of the writ of habeas corpus. By contrast, this Court’s policy of accepting substantial compliance with the procedures of that statute rescued it from unconstitutionality.

I would hold that the correct and constitutional construction of OCGA § 9-14-52 is that substantial compliance with the procedures in that statute is sufficient to initiate an appeal from an adverse judgment against a habeas corpus petitioner. Thus construed, the statute does substantial justice and does not run afoul of the constitutional prohibition against the suspension of the writ of habeas corpus. Furthermore, such an interpretation would be in keeping with the General Assembly’s mandate in OCGA § 1-3-1 (c): “A substantial compliance with any statutory requirement . . . shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” This Court has seen fit to accept substantial compliance with statutory requirements in other situations (Smith v. State, 270 Ga. 68 (508 SE2d 145) (1998); Faulk v. Twiggs County, 269 Ga. 809 (504 SE2d 668) (1998); Fitzpatrick v. State, 268 Ga. 423 (489 SE2d 840) (1997); McClain v. State, 267 Ga. 378 (477 SE2d 814) (1996); Dept. ofTransp. v. Moseman Constr. Co., 260 Ga. 369 (393 SE2d 258) (1990)) and the majority presents no convincing explanation why such a rationale does not apply in this case.

In suggesting that this Court would flout the legislative authority of the General Assembly by considering statutory procedures directory rather than jurisdictional, the majority opinion makes much of the principle of separation of powers. However, the majority opinion ignores in its rhetoric one of the chief roles the judiciary plays in the application of that principle, protecting from the tyranny of the majority the rights of those brought before the bar of justice. There is between the legislative and judicial branches of government a healthy tension as the former seeks to give voice to the will of the majority and the latter seeks to ensure that those expressions of the majority’s will do not weaken the fundamental guarantees of liberty found in our constitution. That is the constitutional mandate which this Court should execute in this case.

In addition to placing even more hurdles in the way of those whose route to justice is already strewn with obstacles, the majority opinion has the undesirable and unjust result of procedurally barring a litigant whose right to relief, should he be permitted to seek it, is plain. Fullwood, in federal custody in Alabama, filed a habeas corpus petition in Crisp County challenging his 1988 conviction there, but the habeas corpus court issued an order denying filing under OCGA § 9-15-2, holding that habeas corpus petitions must be filed in the county where the petitioner is being detained. The law is clear that when a petitioner who is restrained by federal authorities in another state seeks to attack a Georgia conviction, the proper forum for filing a habeas corpus petition is the superior court in the county in which the petitioner was sentenced. Craig v. State, 234 Ga. 398 (216 SE2d 296) (1975). Furthermore, OCGA § 9-15-2 does not apply to habeas corpus proceedings. Giles v. Ford, 258 Ga. 245 (1) (368 SE2d 318) (1988). Thus, the habeas court improperly denied filing. Accordingly, Fullwood’s application for a certificate of probable cause to appeal should be granted and this case should be remanded with instructions to permit the action to proceed. Instead, in the name of rigid adherence to procedure, this Court summarily denies Fullwood access to the relief to which he is entitled. In so doing, it robs the Great Writ of vitality to such an extent as to cause OCGA § 9-14-52 to violate the constitutional proscription against suspending the writ of habeas corpus.

Because justice has been thwarted and the body of the law has been wounded by the majority opinion’s unnecessarily strict interpretation of OCGA § 9-14-52,1 must dissent.

I am authorized to state that Presiding Justice Fletcher and Justice Sears join in this dissent.

1 Fullwood’s situation, a pro se petitioner who failed to comply strictly with the statutory requirements, evokes Presiding Justice Fletcher’s observation in his special concurrence in Davis v. Thomas, 266 Ga. 835, 836 (471 SE2d 202) (1996), that “without competent counsel, an indigent inmate will find the newly enacted time restraints on state habeas actions impossible to meet.”

2 1,327 of 1,462 petitioners seeking review in this Court in 1994-1998.

3 Although I dissented in Howard, my disagreement was with the result, not with the quoted caution against obstruction of the efforts of prisoners to seek justice.